Indiana Law Journal Indiana Law Journal

Volume 48 Issue 2 Article 5

Winter 1973

Contract Law and the Student-University Relationship Contract Law and the Student-University Relationship

Jonathan Flagg Buchter Indiana University School of Law

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Part of the Contracts Commons, and the Education Law Commons

Recommended Citation Recommended Citation Buchter, Jonathan Flagg (1973) "Contract Law and the Student-University Relationship," Indiana Law Journal: Vol. 48 : Iss. 2 , Article 5. Available at: https://www.repository.law.indiana.edu/ilj/vol48/iss2/5

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CONTRACT LAW AND THE STUDENT-UNIVERSITYRELATIONSHIP

The relationship between universities and their students has beenanalyzed by courts under many different legal doctrines. The most endur-ing and pervasive of these has been the theory that there exists an impliedcontract between the student and the institution. Over the years, a patch-work of holdings has created a common law of contract governing thestudent-university relationship. Principles espoused by these holdingsmerit more careful consideration than that provided in recent literatureon the subject.' In addition the common law resulting from such deci-sions deserves comparison with the general law of contract.

EVOLUTION OF STUDENT-UNIVERSITY CONTRACT DOCTRINE

Until the early 1900's, the relationship between the student and theinstitution was expressly stated in a written enrollment contract, whichwas essentially a business agreement between the parent of the student andthe institution.2 Among other things, the agreement provided that theuniversity assume the parental, supervisory role over the child.' Thedoctrine of in loco parentis was developed in order to reflect the legalincidents of this relationship.' Since this theory viewed the institutionas standing "in place of the parent," the school had the right to control

1. See generally K. ALEXANDER & E. SOLOMON, COLLEGE AND UNIVERSITY LAW(1972) [hereinafter cited as UNIVERSITY LAW]; Goldman, The University and theLiberty of Its Students-A Fiduciary Theory, 54 KY. L.J. 643 (1966); Goodman,A Trial Lawyer's View of Lawsuits Against the Schools, in LAw AND DISCIPLINEON CAMPUS 173 (G. Holmes ed. 1971) ; Seavy, Dismissal of Students---"Due Process",70 HAav. L. REv. 1406 (1957); Stamp, Connent, 45 DENVER L.J. 663 (1968); VanAlstyne, The Student as University Resident, 45 DENVER L.. 582 (1968) ; Wasserstein,The Courts and the Campus, in WITH JUSTICE FOR SOME 38 (B. Wasserstein & M. Greeneds. 1970) [hereinafter cited as Wasserstein], Developments in the Law-AcademicFreedom, 81 HARV. L. Pv. 1045 (1968) [hereinafter cited as Developnments] ; Note,Legal Relationship Between the Student and the Private College or University, 7 SANDIEGO L. REV. 244 (1970); Note, The Student-School Legal Relationship: Toward aUnitary Theory, 5 SUFFOLK L. REV. 468 (1971) ; Note, Judicial Intervention in Expul-sions or Suspensions by Private Universities, 5 WILLAMETTE L.J. 277 (1969) ; Note, Pri-vate Govenment on the Canipus-Judicial Review of University Expulsions, 72 YALEL.J. 1362 (1963).

2. See, e.g., McClintock v. Lake Forest University, 222 Ill. App. 468 (1921);Kabus v. Seftner, 34 Misc. 538, 69 N.Y.S. 983 (App. T. 1901). See also Hutt v.Haileybury College, 4 T.L.R. 623 (1888).

3. Comment, Colleges and Universities: The Demise of In Loco Parentis, 6LAND & WATER L. REv. 715 (1971).

4. The in loco parentis doctrine was first applied to higher education in Gottv. Berea College, 156 Ky. 376, 161 S.W. 204 (Ct. App. 1913).

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and discipline the child. In loco parentis proved to be of limited usefulnessas a legal framework in many situations.' Thus, courts began to relyon the actual written contract for guidance. When no written contractexisted, the courts found it useful to use an implied contract theory todelineate the relationship of the parties.'

During the early part of this century, the contract approach becamethe dominant theory under which student-university cases were litigated.Other concepts of the relationship were occasionally used to supplementimplied contract law. One such theory was that the student was grantedthe privilege of attendance by the university,' allowing courts to upholdany university action since students had no rights under such a relation-ship. Another theory used to sustain institutional judgment was that thestudent was the beneficiary in a trust relationship.'

This theoretical mixture was applied in student-university litigationuntil Dixon v. Alabama State Board of Education? was decided in1961. Dixon held, generally, that a public university's actions were stateactions and therefore subject to constitutional restraints and, more par-ticularly, that a student must be afforded procedural due process prior toexpulsion.1"

However, the state action doctrine in Dixon has not replaced theimplied contract theory. Courts still view the student-university relation-ship as one of contract with certain constitutional protections required ifthe institution is public."1 Thus, there may currently be some limits onwhat the public university may demand from the student. For example,a public university may not be able to deny a student certain first amend-

5. For example, in disputes over academic performance, the theory that the schoolstood in place of the parents was not useful. Similarly, if the courts wished to allowstudents to be reinstated where the school had acted arbitrarily, a new theory was needed.Moreover, parents had begun to assert claims for fees which could not be resolved usingin loco parentis. See, e.g., McClintock v. Lake Forest University, 222 Ill. App. 468(1921); Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S.W. 808 (1914);Kabus v. Seftner, 34 Misc. 538, 69 N.Y.S. 983 (App. T. 1901).

6. See, e.g., Booker v. Grand Rapids Medical College, 156 Mich. 95, 120 N.W.589 (1909); Barker v. Bryn Mawr College Trustees, 1 Pa. D. & C. 383 (Dist. Ct.1922).

7. See Hamilton v. Regents of the University of California, 293 U.S. 245 (1934).Some institutions have attempted to revitalize this concept by stating in their cataloguethat attendance at the university is a privilege which can be withdrawn at any time atthe university's discretion. See, e.g., WILBERFORCE UNIVERSITY, WILBERFORCE UNIVER-SITY BULLETIN, 1971-72, at 39 (1971).

8. Koblitz v. Western Reserve University, 11 Ohio C. Dec. 515, 21 Ohio C.C.R.144 (1901).

9. 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930 (1961).10. 294 F.2d at 158.11. "A contract is created with the state which, by its very nature, incorporates

constitutional principles of due process." Anderson v. Regents of the University ofCalifornia, 22 Cal. App. 3d 763, 770, 99 Cal. Rptr. 531, 535 (1972).

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ment rights." However, since the Dixon holding is limited to publicinstitutions, a private university may be able to contract in such a way asto limit these constitutional rights."3

Many litigants have attempted to extend the Dixon holding to pri-vate institions on the grounds that state action is involved in funding,tax exemptions and grant programs. These attempts have been almostuniversally unsuccessful. 4 Thus, contract considerations remain the pre-valent judicial tools used to settle disputes between a private universityand its students, and to judge public university litigation not involvingconstitutional claims.

THE IMPLIED STUDENT-UNIVERSITY CONTRACT

Courts still approach student-university implied contracts 5 by usingessentially traditional, early twentieth century contract doctrines. Undersuch an approach, there is

the implication that the institution had obligated itself-sub-ject, of course, to changes in plan, curriculum, and the like-topermit a student in good standing to continue the particularcourse for which he has entered upon payment of the necessaryfees and compliance with other reasonable requirements."

12. See, e.g., Brooks v. Auburn University, 296 F. Supp. 188 (M.D. Ala.), aff'd,412 F.2d 117 (5th Cir. 1969) ; Dickson v. Sittersen, 280 F. Supp. 486 (M.D.N.C. 1968).For a general discussion of these cases see UNIVERSITY LAW, supra note 1, at 420-21;Note, Student Constitutional Rights on Public Campuses, 58 VA. L. REV. 552 (1972)[hereinafter cited as Public Campuses].

13. It is clear, therefore, that the principle which counsel for the plaintiffsseek to invoke, namely, that a Government college or university may not expelits students without notice of charges and an opportunity to be heard, is notapplicable to Howard University, for it is not a public institution nor does itpartake of any governmental character.

Greene v. Howard University, 271 F. Supp. 609, 612 (D.D.C. 1967).14. See Blackman v. Fisk University, 443 F.2d 121 (6th Cir. 1971); Coleman v.

Wagner College, 429 F.2d 1120 (2d Cir. 1970) ; Brown v. Mitchell, 409 F.2d 593 (10thCir. 1969) ; Rowe v. Chandler, 332 F. Supp. 336 (D. Kan. 1971) ; Torres v. Puerto RicoJunior College, 298 F. Supp. 458 (D.P.R. 1969) ; Grossner v. Trustees of Columbia Uni-versity, 287 F. Supp. 535 (S.D.N.Y. 1968) ; Greene v. Howard University, 271 F. Supp.609 (D.D.C. 1967), dismissed as moot, 412 F.2d 1128 (D.C. Cir. 1969) ; Guillory v. Trus-tees of Tulane University, 212 F. Supp. 674 (E.D. La. 1962). But see Ryan v. HofstraUniversity, 67 Misc. 2d 651, 324 N.Y.S.2d 964 (Supp. Ct 1971). For the case of theschizophrenic student body-i.e., half public, half private-see the description of AlfredUniversity in Powe v. Miles, 407 F.2d 73 (2nd Cir. 1968).

15. This note covers the basic student-university contract. Other contractualrelationships between the parties, such as dormitory contracts and athletic scholar-ships, will not be discussed.

16. Samson v. Trustees of Columbia University, 101 Misc. 146, 148, 167 N.Y.S.202, 204 (Sup. Ct. 1917).

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Fees,"7 student conduct and discipline, 8 academic matters,"9 and even thecontinued existence of the college"0 have all been found to be covered by

17. Niedermeyer v. Curators of State University, 61 Mo. App. 654 (KansasCity Ct. App. 1895) (action by student to enforce charges listed in university catalogueand to recover additional amount paid); Trustees of Columbia University v. Jacob-sen, 53 N.J. Super. 574, 148 A.2d 63, appeal dismissed, 31 N.J. 221, 156 A.2d 251(1959), cert. denied, 363 U.S. 808 (1960) (action by university for unpaid tuition);Auser v. Cornell University, 71 Misc. 2d 1084, 337 N.Y.S.2d 878 (Sup. Ct. 1972)(action by student to enjoin imposition of additional fees); Drucker v. New YorkUniversity, 59 Misc. 2d 789, 300 N.Y.S.2d 749 (App. T. 1969) (action by student torecover tuition paid prior to registration at an institution he never attended) ; Silverv. Queens College of City University, 63 Misc. 2d 186, 311 N.Y.S.2d 313 (Civ. Ct. ofCity of New York 1970) (action by student to enforce contract based upon previousstatement of fees).

18. Dehaan v. Brandeis University, 150 F. Supp. 626 (D. Mass. 1957) (studentexpelled for protesting the amount of his graduate fellowship); John B. Stetson Uni-versity v. Hunt, 88 Fla. 510, 102 So. 637 (1925) (student expelled for ringingcowbells and other "disorderly acts" in dormitory); Robinson v. University of Miami,100 So. 2d 442 (Fla. Dist. Ct. App. 1958) (university declined to place student instudent-teaching position because he was a "fanatical atheist") ; People ex tel. Pratt v.Wheaton College, 40 IIl. 186 (1866) (student expelled for joining a "secret society");McClintock v. Lake Forest University, 222 Ill. App. 468 (1921) (student expelledfor smoking); Carr v. St. John's University, 17 App. Div. 2d 632, 231 N.Y.S.2d410, aff'd meim, 12 N.Y.2d 802, 187 N.E.2d 18, 235 N.Y.S.2d 834 (1962) (studentsexpelled for witnessing a civil marriage ceremony) ; Anthony v. Syracuse University,224 App. Div. 487, 231 N.Y.S. 435 (1928) (student expelled for not being a "typicalSyracuse girl"); Goldstein v. New York University, 76 App. Div. 80, 78 N.Y.S. 739(1902) (student expelled from law school for writing to a woman in class); Samsonv. Trustees of Columbia University, 101 Misc. 146, 167 N.Y.S. 202 (Sup. Ct.), aff'd,181 App. Div. 936, 167 N.Y.S. 1125 (1917) (student expelled for making off-campusspeech encouraging draft resistance) ; People ex tel. Cecil v. Bellevue Hospital MedicalCollege, 60 Hun 107, 14 N.Y.S. 490 (Sup. Ct. 1890), aff'd, 128 N.Y. 621, 28 N.E.253, 14 N.Y.S. 490 (1891) (student refused the opportunity to take final exams forundisclosed conduct); Cornette v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. 1966)(student expelled for violations of driving regulations and general conduct regulations).

19. Zumbrun v. University of Southern California, 25 Cal. App. 3d 1, 101 Cal.Rptr. 499 (1972) (action by student for damages resulting from loss of class time);University of Miami v. Militana, 184 So. 2d 701 (Fla. Dist. Ct. App. 1966) (studentexpelled for poor academic performance); State ex tel. Nelson v. Lincoln MedicalCollege, 81 Neb. 533, 118 N.W. 122 (1903), aff'd, 86 Neb. 269, 125 N.W. 517 (1910)(student denied degree because of failing grades); Balogun v. Cornell University,70 Misc. 2d 474, 333 N.Y.S.2d 838 (Sup.-Ct. 1971) (student denied degree because ofpoor grades) ; Healy v. Larsson, 67 Misc. 2d 374, 323 N.Y.S.2d 625 (Sup. Ct. 1971)(student denied degree because he had not completed prescribed course work); Eddev. Columbia University, 8 Misc. 2d 795, 168 N.Y.S.2d 643 (Sup. Ct. 1957), af'd, 6App. Div. 2d 780, 175 N.Y.S.2d 556 (1958), cert. denied, 359 U.S. 956 (1959) (studentaction to compel acceptance of his doctoral thesis); Paynter v. New York University,64 Misc. 2d 226, 314 N.Y.S.2d 676 (Civ. Ct. of City of New York), rev'd, 66 Misc.2d 92, 319 N.Y.S.2d 893 (App. T. 1971) (action by parent for fees based on classtime lost due to university closing) ; Koblitz v. Western Reserve University, 11Ohio C. Dec. 515, 21 Ohio C.C.R. 144 (1901) (student denied class advancement becauseof poor grades) ; Strank v. Mercy Hospital, 383 Pa. 54, 117 A.2d 697 (1955) (action byformer student for transfer credits and transcript); Foley v. Benedict, 122 Tex. 193,55 S.W.2d 805 (1932) (student expelled for failing grades).

20. Galton v. College of Pharmaceutical Sciences, 70 Misc. 2d 12, 332 N.Y.S.2d909 (Sup. Ct. 1972).

256

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this implied contract."In general, if no specific contract document is signed at the time of

application, admission, or registration, entry of the student onto theuniversity campus, or into university life is regarded as the point of for-mation of the student-university contract.22 This construction is con-sistent with the contract principle that acceptance of an offer may beinferred from the parties' actions."3 Moreover, even if the student has notyet arrived at the university, some courts have held that advance paymentand acceptance of tuition may create binding obligations on both parties.24

Therefore, although the student notifies the university in writing of hisintention not to attend, the school may not be obligated to refund histuition. If there is a catalogue provision stating that tutition is not re-fundable, the student is bound by his implied contract with the univer-sity." For the same reason, the university cannot increase its charges tothe student after accepting payment of full tuition.2"

The implied contract is considered to be between the individual stu-dent and the university as a corporate body. Although students have at-tempted to join faculty members, administrative officers, and trustees insuits, courts have usually dismissed such defendants on the grounds thatthey were not parties to the contract.27

In the older cases, the parent was often considered one of the partiesto the contract." More recently, a parent sued to enjoin a college fromimplementing new liberal parietal hours. The court found that the set-

21. However, a recent case limited the scope of the implied contract in holdingthat the student did not waive possible tort actions. Jay v. Walla Walla College, 53Wash. 2d 590, 335 P.2d 458 (1959). The limitation on liability urged by the collegewas not set forth in the institution's catalogue or regulations. The court's positionmight have been different if such an express clause had been included.

22. See Greene v. Howard University, 271 F. Supp. 609 (D.D.C. 1967); Ander-son v. Regents of University of California, 22 Cal. App. 3d 763, 99 Cal. Rptr. 531(1972); McClintock v. Lake Forest University, 222 Ill. App. 468 (1921); Peopleex re. Cecil v. Bellevue Hospital Medical College, 60 Hun 107, 14 N.Y.S. 490 (Sup.Ct. 1890).

23. 1 S. WILLISTON, A TRaATIsE ON THE LA-W OF CONTRACTS § 90 (3d ed. 1957)[hereinafter cited as WLIsToN] ; RESTATEMEINT OF CONTRACTS §§ 21, 72(2) (1932).

24. Drucker v. New York University, 59 Misc. 2d 789, 300 N.Y.S.2d 749 (App.T. 1969) ; Ewing v. State, 69 Misc. 2d 923, 331 N.Y.S.2d 287 (Ct. Cl. 1972); Silverv. Queens College of City University, 63 Misc. 2d 186, 311 N.Y.S.2d 313 (Civ. Ct. ofCity of New York 1970); Cornette v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App.1966).

25. Drucker v. New York University, 59 Misc. 2d 789, 300 N.Y.S.2d 749 (App.T. 1969).

26. Silver v. Queens College of City University, 63 Misc. 2d 186, 311 N.Y.S.2d313 (Civ. Ct. of City of New York 1970).

27. See, e.g., Zumbrun v. University of Southern California, 25 Cal. App. 3d1, 101 Cal. Rptr. 499 (1972).

28. See, e.g., Manson v. Culver Military Academy, 141 Ill. App. 250 (1908);Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S.W. 808 (1914).

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ting of students' hours was within the college's authority, but, in findingno breach of contract, the decision implied that parents were still con-sidered parties to university contracts involving their children."9

In attempting to determine the terms of the implied contract, thecourts have usually looked to the documents which are familiar to thestudent in the university setting. Generally, the university catalogue orbulletin is considered the primary document in the relationship.30 State-ments made in other documents have also been held to constitute termsof the bargain. Thus, dormitory contracts,"' registration cards,8" admis-sion applications," catalogue supplements," as well as oral statements"have all been found to contain contract terms. Such terms are binding onthe parties, independent of whether the university so intended, and regard-less of whether the student knew of them or understood them to be a partof the contract."

Courts apply varying degrees of scrutiny to different categories ofcontract terms. In litigation over fees, the rule is that the courts will en-force whatever the university's published statements prescribe.8 7 In

29. Jones v. Vassar College, 59 Misc. 2d 296, 299 N.Y.S.2d 283 (Sup. Ct. 1969).30. Dehaan v. Brandeis University, 150 F. Supp. 626 (D. Mass. 1957); University

of Miami v. Militana, 184 So. 2d 701 (Fla. Dist. Ct. App. 1966); Robinson v. Uni-versity of Miami, 100 So. 2d 442 (Fla. Dist. Ct. App. 1958) ; Drucker v. New YorkUniversity, 59 Misc. 2d 789, 300 N.Y.S.2d 749 (App. T. 1969); Carr v. St. John'sUniversity, 17 App. Div. 2d 632, 231 N.Y.S.2d 410, aff'd inem., 12 N.Y.2d 802, 187N.E.2d 18, 235 N.Y.S.2d 834 (1962) ; Silver v. Queens College of City University, 63Misc. 2d 186, 311 N.Y.S.2d 313 (Civ. Ct. of City of New York 1970).

31. Cornette v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. 1966).32. Anthony v. Syracuse University, 224 App. Div. 487, 231 N.Y.S. 435 (1928).33. Culver Military Academy v. Staley, 250 Ill. App. 531 (1928); McClintock

v. Lake Forest University, 222 Ill. App. 468 (1921). See also Hutt v. HaileyburyCollege, 4 T.L.R. 623 (1888).

34. Balogun v. Cornell University, 70 Misc. 2d 474, 333 N.Y.S.2d 838 (Sup. Ct.1971).

35. Healy v. Larsson, 67 Misc. 2d 374, 323 N.Y.S.2d 625 (Sup. Ct. 1971) ; Foleyv. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932).

36. An excellent discussion of the expectations of the parties in such cases maybe found in the lower and appellate court opinions in Drucker v. New York University,57 Misc. 2d 937, 293 N.Y.S.2d 923 (Civ. Ct. of City of New York 1968), rev'd, 59Misc. 2d 789, 300 N.Y.S.2d 749 (App. T. 1969).

37. For example, it has been held that since there was a statement in the cataloguemailed to the student that no fees paid were refundable, the student was bound by thatterm and could not receive a refund even though he had never read those provisions ofthe catalogue or attended the school. Drucker v. New York University, 59 Misc. 2d789, 300 N.Y.S.2d 749 (App. T. 1969).

Recently, a New York court admitted "to serious difficulty in understanding thepurpose of the transfer tuition charge" assessed by Cornell University. Auser v. CornellUniversity, 71 Misc. 2d 1084, - , 337 N.Y.S.2d 878, 880 (Sup. Ct. 1972). However,the court upheld a transfer assessment on contract grounds. Since Cornell's cataloguecontained a provision stating that a transferring student must pay the fee, the courtrefused to look into the rationale behind such a charge. In some cases, however, theuniversity's statements on fees conflicted. The issue then became which statements con-

CONTRACT LAW

disputes over grading or curricula, courts have usually avoided any actionon their part which might be construed as judicial interference with aca-demic judgments, unless arbitrary or unreasonable conduct can beshown. 8 However, student reliance on misrepresented academic stand-ards may estop the university from later changing its agreements."9 Indisagreements concerning student conduct, courts have generally favoredthe university's interpretation of the contract.4"

stituted the terms of the implied student-university contract. For example, in one case,a catalogue statement made upon a student's entrance into law school as to the fees forthe following three years conflicted with the fee schedule established between his secondand third years. The court held that the institution's original statement as to fees,coupled with acceptance of the first two years' tuition, bound the institution to itsoriginal bargain. Neidermeyer v. Curators of State University, 61 Mo. App. 654(Kansas City Ct. App. 1895).

38. One court recently refused to revise an academic evaluation, stating:Beyond the mere allegation, there is no showing that denial of plaintiff'sdegree was arbitrary, malicious, capricious, or in any way discriminatory.The unrefuted evidence is that standard procedures of review of academicachievement and professional potential were equally applied to all members of[the student's] class and that the decision to withhold a degree from himresulted from the rightful exercise of honest discretion based upon justifyingfacts. Abuse of discretion or gross error has not been shown.

Balogun v. Cornell University, 70 Misc. 2d 474, 477, 333 N.Y.S.2d 838, 841-42 (Sup. Ct.1971).

Another court refused to measure academic services by the number of classes.While noting that the student may have contracted for a number of classes, the court said,"[t]he circumstances of the relationship permit the implication that the professor or col-lege may make minor changes in this regard." Paynter v. New York University, 66Misc. 2d 92, 92-93, 319 N.Y.S.2d 893, 894 (App. T. 1971). An additional, albeit mechan-istic, analysis of some of the contract implications of Paynter may be found in Note,Contracts-Paynter v. New York University: How Discretionary Are the InherentPowers of Universities?, 21 DEPAut. L. Rav. 861 (1972).

Similarly, in Trustees of Columbia University v. Jacobsen, 53 N.J. Super. 574,148 A.2d 63, appeal dismissed, 31 N.J. 221, 156 A.2d 251 (1959), cert. denied, 363U.S. 808 (1960), a student unsuccessfully attempted to defend against a suit for unpaidtuition on the ground that the university had breached a promise to impart wisdomand make him an educated man. The court refused to find that general statementson the ideals of education written in the catalogue and sculpted on university buildingsconstituted such an obligation.

39. For example, in Healy v. Larsson, 67 Misc. 2d 374, 323, N Y.S.2d 625 (Sup.Ct. 1971), the court compelled an institution to issue a degree on the ground that anoral statement of an official prompted specific student reliance and was therefore abinding contract term. The university was found to be bound by the statement of thestudent's advisor who had erroneously outlined the course of study necessary for adegree.

40. In student conduct cases, the terms of the contract are more difficult todetermine. Generally, conduct terms fall into two categories. The first includesspecific rules and regulations, such as dress codes, drinking regulations, dorm hours,and driving regulations. See Cornette v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App.1966). Reported cases involving such specific rules are rare. This lack of cases maybe explained by the fact that colleges rarely write specific rules, and that if such rulesare written, students would probably not contest their application.

The second category of terms is non-specific. It includes broad rules which state,for example, that students shall conduct themselves "in conformity with the ideals ofChristian education and conduct." Carr v. St. John's University, 17 App. Div. 2d 632,

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The remedies granted for breach of the student-university contract

are of three types: damages, injunction, and specific performance.4'

231 N.Y.S.2d 410, affd wern., 12 N.Y.2d 802, 187 N.E.2d 18, 235 N.Y.S.2d 834 (1962).Also included are the broad grants of discretionary power commonly reserved by theuniversities in their catalogues, often called "waiver clauses":

Students are expected to conduct themselves with due regard for the rightsof others and for reasonable standards of behavior. In cases where studentshave not done so, the University reserves the right to take disciplinary measures,including the requirement to withdraw.

TuFTs UNrVERSITY, BULLETIN OF TuFTs UNIvERSITY 1971-72, at 43 (1971).If it is in the interests of the College, its members, or the privacy of thepersons involved, the College reserves the right to take such disciplinaryaction [dismissal] with or without public statement of the reason therefor,and neither the College nor any of its officers shall be under any liabilityfor such action.

RIPoN COLLEGE, RIPoN COLLEGE BULLETIN 1972-73, at 133 (1972).The continuance of each student upon the rolls of his school, receipt ofacademic credits, graduation, and the conferring of any degree are strictlysubject to the disciplinary powers of the university, which is free to cancelregistration at any time on grounds which are deemed advisable.

GEoRGETowN UNIVERSiTY, GEORGETOWN UNIVERSITY BULLETi-1972-73, at 2 (1972).Finally, the second category of terms includes those which are read into the con-

tract by courts when no writing exists. In such cases the courts use a reasonablenessstandard similar to that used in the case of a written contract. There is an impliedcondition "that the student will obey reasonable rules and regulations of the school."Hood v. Tabor Academy, 296 Mass. 509, 510, 6 N.E.2d 818, 819 (1937). See alsoJohn B. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637 (1924); Koblitzv. Western Reserve University, 11 Ohio C. Dec. 515, 21 Ohio C.C.R. 144 (1901).

This second category of rules generates the most litigation. In such cases, thecourt is usually faced with the unilateral interpretation or ad hoe creation of a ruleby the institution. The judicial response has been to defer to the university's judg-ment on the matter, thereby requiring the student to prove that the university's actionwas arbitrary or unreasonable. See, e.g., Dehaan v. Brandeis University, 150 F. Supp.626 (D. Mass. 1957); Robinson v. University of Miami, 100 So. 2d 442 (Fla. Dist.Ct. App. 1958) ; Carr v. St. John's University, 17 App. Div. 2d 632, 231 N.Y.S.2d 410,aff'd mere., 12 N.Y.2d 802, 187 N.E.2d 18, 235 N.Y.S.2d 834 (1962); Anthony v.Syracuse University, 224 App. Div. 487, 231 N.Y.S. 435 (1928); Foley v. Benedict,122 Tex. 193, 55 S.W.2d 805 (1932). Such an allocation of burdens usually resultsin a determination upholding the university's action. For example, a student whoobjected to the amount of his graduate fellowship was expelled from the institution,and sued for reinstatement. Dehaan v. Brandeis Uuiversity, 150 F. Supp. 626 (D.Mass. 1957). The university defended on the ground that a clause in the cataloguestated that the university might take any action it "deemed appropriate." In upholdingthe student's expulsion, the court found this clause to be a term of the student-university contract to which the student had agreed. Id. at 627. In another case, auniversity found one of its students to be a "fanatical atheist" on the basis of two lettershe wrote to a local newspaper. The university refused to place him in a studentteaching position-a prerequisite to an education degree and teaching certification.The court upheld the university's action, citing a clause in the university cataloguewhich stated that the university could change "any provision or any requirement atany time within the student's terms of residence." Robinson v. University of Miami,100 So. 2d 442 (Fla. Dist. Ct. App. 1958).

41. There were several early decisions in which mandamus was granted againsta private educational institution to enforce reinstatement orders. See Pennypacker,Mandamus to Restore Academic Prhdleges, 12 VA. L. Rrv. 645 (1926) ; Recent Cases,77 U. PA. L. R-v. 694 (1929). However, later courts refused to follow these precedents.

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Money damages may be sought by either side in fee disputes, but casescontesting fees are rare." Recent cases have also raised the question ofavailability of consequential damages for failure of the university to pro-vide promised academic services." Plaintiffs in these cases requesteddamages to replace earnings which were alleged to have been lost as aresult of university acts or inadequacies. While none of these cases reach-ed the damage issue, such claims may become more prevalent in the futureas the courts increasingly recognize the income value of education.

Injunctive relief is usually sought in expulsion-reinstatement disputes.The relief prayed for is an injunction barring the institution from deny-ing the student the use of university facilities or attempting to hamper hiseducation by disciplining him for previous misconduct. Such injunctions

See, e.g., Booker v. Grand Rapids Medical College, 156 Mich. 95, 120 N.W. 589(1909); Kaelin v. University of Pittsburgh, 421 Pa. 220, 218 A.2d 798, cert. denied,385 U.S. 837 (1966). Mandamus was apparently granted in the earlier cases becauseof the inadequacy of contract damages and the unavailability of injunctive relief as aremedy when the cases were decided.

42. The university commonly receives payment in advance of its performanceso that suits for tuition by the institution are seldom needed, although they areoccasionally reported. See, e.g., Trustees of Columbia University v. Jacobsen, 53N.J. Super. 574, 148 A.2d 63 (1959); Taylor v. Wake Forest University, - N.C.App. - , 191 S.E.2d 379 (1972). Moreover, students withdrawing from schools donot sue for refunds, presumably because refund schedules are now prevalent in schoolcatalogues and would be considered binding. Typically, these schedules state a per-centage of tuition which may be recovered after the semester has started. Forexample, the Indiana University "Fee Refund Schedule" provides for a 100 per centrefund during the first week of the semester, a refund of the larger of fifty per cent or100 per cent minus fifty dollars for the second week, and no refund thereafter. INDIANAUNIvERSITY, INDIANA UNIVERSITY BuLLETIN, 1972/73, at 5 (1972).

In addition, there is a long-standing common law interpretation, dating back tothe nineteenth century, that university contracts do not provide for partial relief. Theessential reason given for this rule is that the institution has certain fixed costs, andthat its income may also be fixed by admitting a definite number of students. Thus,allowing a refund after the term has started would deprive the university of expectedrevenue which it could not replace. See Wentworth Military Academy v. Marshall,225 Ark. 591, 283 S.W.2d 868 (1955); Manson v. Culver Military Academy, 141Ill. App. 250 (1908) ; Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S.W.808 (1914); Drucker v. New York University, 59 Misc. 2d 789, 300 N.Y.S.2d 749(App. T. 1969) ; Kabus v. Seftner, 34 Misc. 538, 69 N.Y.S. 983 (App. T. 1901) ; CastleHeights School v. Russ, 4 Tenn. C.C.A. 288 (1913). But see McClintock v. LakeForest University, 222 Ill. App. 468 (1921).

Students wrongfully expelled by the university could presumably demand eithera partial or total refund, but such action has been rarely requested. One court hasstated that part of the tuition is refundable if the explusion is found to be arbitraryor unreasonable. Miami Military Institute v. Leff, 129 Misc. 481, 220 N.Y.S. 799(City Ct. of Buffalo 1926).

43. Zumbrun v. University of Southern California, 25 Cal. App. 3d 1, 101 Cal.Rptr. 499 (1972) (alleged damages for delay in earning degree) ; Balogun v. CornellUniversity, 70 Misc. 2d 474, 333 N.Y.S.2d 838 (Sup. Ct. 1971) (loss of future earn-ings from failure to grant veterinary degree); Huckabay v. Netterville, 263 So. 2d113 (La. App. 1972) (alleged damages for poor legal education resulting in failureto pass bar exam three times).

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have been granted by trial courts which have found a contract breach bythe university, but these have not been enforced because of appellate re-versals on other grounds."

Specific performance has been held to be a possible remedy in dis-putes which involve academic services. Since the courts are reluctantto review the professional judgment of university academicians, specificperformance has been limited to those cases in which the professional re-quirements have apparently been satisfied, and there remains only univer-sity action of a clerical or administrative nature.45

THE CONTRAST BETWEEN STUDENT-UNIVERSITY CONTRACT LAW

AND THE GENERAL LAW OF CONTRACT

The view that the student-university relationship was one of impliedcontract grew out of the necessity for a description that adequately de-picted the nature of the relationship and the kinds of litigation it wasgenerating. Originally, contract theory in this area provided resultswhich reflected the parties' expectations. It reinforced general nineteenthcentury notions of freedom of contract and equality of parties. Today,however, many of these theories have been modified or abandoned bycourts which have recognized that contract principles developed to ad-judicate disputes between commercial interests may not be appropriate inconsumer affairs and other relationships where lay individuals areparties.

In the area of fees, courts have viewed the contract between the stu-dent and the university as a commercial relationship, in which specificprices are agreed upon and paid. This approach appears to coincide withthe intentions of the parties. Both the student and the university desirecertainty in their financial obligations and are likely to view the publishedstatement of fees as binding. However, courts' decisions upholding re-fund schedules have not adhered to current commercial contract law.Under the Uniform Commercial Code, an aggrieved seller is unable toretain the full contract price after breach if that amount exceeds his dam-ages."' The mechanical university catalogue rules relating weeks of at-

44. See, e.g, Carr v. St. John's University, 34 Misc. 2d 319, 231 N.Y.S2d 403(Sup. Ct), rev'd, 17 App Div. 2d 632, 231 N.Y.S.2d 410, aff d inem., 12 N.Y.2d 802,187 N.E.2d 18, 235 N.Y.S.2d 834 (1962) ; Goldstein v. New York University, 38 Misc.93, 77 N.Y.S. 80 (Sup. Ct.), rev'd, 76 App. Div. 80, 78 N.Y.S. 739 (1902).

45. For example, a court recently compelled a nursing school to grant a formerstudent credits already earned and to give her a copy of her transcript. Strank v.Mercy Hospital, 383 Pa. 54, 117 A.2d 697 (1955). In another case, after finding thatthe college had bound itself to certain degree requirements, the court awarded specificperformance, the granting of a degree, to a student who had completed that course.Healy v. Larsson, 67 Misc. 2d 374, 323 N.Y.S.2d 625 (Sup. Ct. 1971).

46. See UNIFORm COMMERCIAL CODE § 2-708 (1972 version).

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tendance to percentage refunds,4" do not accurately reflect the costs to theuniversity as they actually exist over the semester. Thus, under the com-mercial model, a court faced with litigation concerning such a schedulewould have to detemine the actual monetary loss and would not acceptthe university's specification of damages as controlling.4 8

In the area of academic services, the courts' approach has been similarto that used with contracts conditioned upon the satisfaction of oneparty."0 The university requires that the student's academic performancebe satisfactory to the university in its honest judgment. Absent a showingof bad faith on the part of the university or a professor, the court will notinterfere."0 The good faith judgment model both maximizes academicfreedom and provides an acceptable approximation of the educational ex-pectations of the parties.

In the area of student conduct and discipline, the courts' view of thecontract which governs the student-university relationship has not fol-lowed contract law trends. Two areas of divergence are notable.

First, courts have upheld waiver clauses and other catalogue pro-visions even though there was no finding that they had been read or under-stood as binding by a reasonable student."' Contract law has adopted adifferent approach in similar situations. The courts will not bind a partyto terms of a document, such as a catalogue, unless

the facts present a case where the person receiving the papershould as a reasonable man understand that it contained termsof the contract which he must read at his peril, and regard aspart of the proposed agreement. 2

47. See discussion of refund schedules in note 42 supra.48. At least two commercial theories could be used in this situation. First,

mechanical refund schedules could be struck down as penalty clauses. See 5 A.CORBIN, CORBIN ON CONTRACTS §§ 1073-74 (1964) [hereinafter cited as CORBIN]. Second,an approach similar to that of the Uniform Commercial Code, which has specificprovisions for buyers' partial recovery after their own breach, could be adopted.See UNIFORM CON.XIERCIAL CODE § 2-718, particularly subsection 2.

49. 3A CoRBIN, supra note 48, §§ 644-647.50. More demanding characterizations of the university's duty are conceivable;

for example, one might analogize to the reasonable skill standard used in the case ofcontracts for professional services.

51. See cases cited in WILLISTON, supra note 23, § 90D. See also Drucker v.New York University, 59 Misc. 2d 789, 300 N.Y.S.2d 749 (App. T. 1969).

52. WILLISTON, supra note 23, § 90D. For example, in general contract law aliability limitation printed on a parcel check or ticket is not binding unless the recipientcould reasonably expect it to be there. The courts have found that one receiving sucha check would not expect it to contain a liability limitation. See, e.g., Kar v. H &M Parcel Room, Inc., 270 App. Div. 538, 61 N.Y.S.2d 285 (1946), aff'd., 296 N.Y.1044, 73 N.E.2d 912 (1947); Healy v. New York Central & Hudson River R.R.Company, 153 App. Div. 516, 138 N.Y.S. 287 (1912).

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The student is not likely to expect that the catalogue contains such bindingterms regulating conduct.

Although this absence of a knowledge requirement is found in theareas of fees and academic services, the considerations which make suchaction justifiable in those areas are not valid in the discipline situation.Viewing the catalogue as the contract document does not accurately re-flect the apparent expectation of either party as to its role in conduct reg-ulation. The student, in attempting to decide which university to attend,is most likely to make comparisons on the basis of the academic programand tuition of each institution, and will look to the catalogue for this in-formation. Differences among universities as to conduct regulations anddiscipline powers, on the other hand, are probably not considered by thestudent. In addition, the very nature of a catalogue does not suggest thatbinding conduct rules are contained therein. The majority of a catalogueis devoted to the listing of academic offerings. 3 Conduct clauses areusually found in miscellaneous sections, often surrounded by idyllic de-scriptions of student life and campus ambiance. 4

The second major divergence from general contract law occurs whenthere are either no written provisions governing discipline or else theprovisions are unclear or ambiguous. In these situations, courts have re-quired the student to prove that the university's unilateral action was notwithin the terms of his agreement, as interpreted by the university." Hereagain, the normal expectations of the student seem to conflict with thecourts' interpretation of the contract and its terms. A student is not likelyto view the university campus as an area requiring a standard of conductany different from that provided for any other public or private area bythe state's criminal law. The university administration is similarly viewedas having no special insight as to the propriety of a student's non-academicconduct." A student will expect that his interpretation of a term re-quiring reasonable conduct will not differ from the standard applied bythe university. And when a disagreement over meaning occurs, the stu-dent has no reason to expect that his interpretation will be given any less

53. See, e.g., DRAKE UNIVERSITY, DRAxE UNIVERSITY 1969-70 CATALOGUE (1969);HowARD UNIVERSITY, HowARD UNIVERSITY CATALOG 1971-73 (1971).

54. See, e.g., MANCHESTER COLLEGE, MANCHESTER COLLEGE CATALOG, 1972-73, at 40(1972); MARSHALL UNIVERSITY, MARSHALL UNIVERSITY GENERAL UNDERGRADUATECATALOG 1972-73, at 76 (1972). See also AMERICAN UNIVERSir'V, THE AMERICAN UNI-VERSITY BULLETIN, 1972 (1972), which puts its waiver clause in small print immediatelyafter the title page and before the table of contents.

55. See Dehaan v. Brandeis University, 150 F. Supp. 626 (D. Mass. 1957);Robinson v. University of Miami, 100 So. 2d 442 (Fla. Dist. Ct. App. 1958); note51 supra.

56. However, students probably expect university administrators to have aspecial insight in matters concerning academic conduct, i.e., cheating and plagiarism.

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credence than that of the institution. Thus, a student may well be sur-prised when a regulation which states that the university will be allowedto discharge a student for grounds it deems reasonable is held to meanthat the student must prove his expulsion unreasonable and that the courtwill accept, without scrutiny, the university's interpretation.

Contract law has dealt with analogous situations with different re-sults. Two methods of interpreting the student-university contract maybe derived from courts' experience with these situations. First, since theinstitution maintains exclusive control over the drafting of the contractterms, the logic applied to contracts of adhesion could be employed. Inviewing such agreements, the courts have construed ambiguous terms ofthe contract against the party who wrote them, reasoning that the drafter'sadvantage in being able to write the agreement should have resulted in acontract which clearly expressed his position.57 If such an analysis wereapplied to the student-university contract, students could not be expelledunless the university had, prior to the violation, either spelled out as pro-hibited the specific conduct of the student or declared clearly and openlythat it did not consider itself bound by a standard of reasonableness inmatters concerning student conduct.

An alternative and less severe method of resolving a dispute overinterpretation of any provision is simply to find no agreement on the typeof conduct in question. A decision that there was no meeting of the mindswould allow the court to imply a term which it felt to be reasonable inthe context of the parties' relationship. 8 Under this view, the universitycan still discipline without specific rules if it is willing to risk an unfavor-able, independent determination of reasonableness by a reviewing court.

APPLICATION OF CONTRACT DOCTRINE TO THE PRIVATE UNIVERSITY

Much recent litigation has sought to extend constitutional protectionsto students at private universities. 9 These efforts have relied upon char-acterization of private university discipline as state action because ofgovernmental involvement in funding and taxation. This constitutionalfocus has neglected the possibility of achieving many of the same resultsthrough the law of the implied student-university contract which con-stitutes the basic legal relationship in both public and private universities.

General contract law, through its protection of expectations and in-tents, often produces outcomes which parallel those obtained through

57. 1 CoRBIN, mtpra note 48, § 128. See also Kessler, Contracts of Adhesion-Some Tiughts About Freedom of Contract, 43 CoLumd. L. REv. 629 (1943).

58. 1 Coini, .mpra note 48, §§ 95-107; 3 id., § 562; 4 WILLISTON, supra note23, § 618.

59. See note 14 supra.

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constitutional analysis. For example, students in public universities havesought reinstatement after expulsion on the ground that the rules allegedlyviolated were unconstitutionally vague.6" Contract law doctrine providesa method of resolving the same types of disputes by construing ambigu-ous terms against the drafting party."' Where constitutional law pro-hibits implication of a waiver of rights by conduct without clear mani-festation of intent,62 contract law provides that agreement to terms willbe implied only when it is reasonable to believe such assent was intended."3

Contract theory also has the potential to establish in the private uni-versity many of the substantive rights which are protected by the stateaction theory in the public university. 4 When a court finds that therehas been no meeting of the minds as to university rules or powers in theseareas, either because there is nothing written or because the meaning ofwhat is written is unclear, the court may imply a term which reflects anaccommodation of the parties' reasonable expectations.

It is unlikely that a student will perceive any rationale for differencesin conduct regulation based on the private-public distinction unless thereis something special about the character of the particular private institu-tion which would draw this distinction to his attention.65 Therefore, inmost cases he will expect the same freedoms on the private campus as hewould enjoy at a public university. As for the university's expectations,one noted commentator has suggested a reasonable perspective:

Historically private colleges and universities have allowed morefreedom to their students than has been true at public institu-tions, and, in the turbulent atmosphere on today's campuses, itseems to me unthinkable that the faculty and administration ofany private institution would consider recognizing fewer rights

60. See, e.g., Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969); Esteban v.Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969).

61. See note 59 supra & text accompanying.62. Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 156 (5th Cir. 1961).

See generally Johnson v. Zerbst, 304 U.S. 458 (1938).63. See note 60 supra & text accompanying.64. See generally UNIvRSIr LAw, supra note 1; Wasserstein, supra note 1, at

43; Public Campuses, supra note 12.65. A student attending a military institution or a religious university would

be more likely to perceive the differences in discipline between his college and others,as well as the rationale for those differences. In general, however, it is often difficultto determine whether the institution is private or public. For instance, names areoften deceiving. While Purdue University and Southern University are public institu-tions, Ohio Universty and New York University are private. Moreover, even if thestudent carefully studies the catalogue, he may be unable to tell whether the universityis public or private, especially in the case of the "schizophrenic university." See note14 supra.

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in their students than the minimum the Constitution exactsof the state universities."6

Thus a court, in defining a term based on the parties' expectations, couldfind that the substantive protections afforded students in the public uni-versity would have been adopted as an expression of their agreement.6

Contract law cannot assure private university students all the pro-tections enjoyed by their counterparts in public institutions. Forexample, many of the elements of procedural due process, such as pre-expulsion notice and hearings, are not provided under traditional contractanalysis. All that can be established by contract law is that after a uni-versity has acted, the decision will be reviewed by a court which has nopreconceived notion of the correctness of the action, and that the burdenof proof will be on the university. 8

In addition, traditional contract law, based on the expectations ofthe parties, cannot prevent the private university from contracting forterms which would be considered unconstitutional waivers of rights inthe public university. 9 It would, however, insure that the university

66. Wright, The Constitution on Campus, 22 VAND. L. Rxv. 1027, 1035 (1969)(footnotes omitted).

67. The public university protections could also be deemed the "standard ofthe industry." Under this analysis, the courts could substitute the standard practicein the industry-as they do in general contract law-for the vague or ambiguous term.For a discussion of the general contract law use of this analysis, see 3 Co n, supranote 48, §§ 560, 570; 4 VMLISTOX, supra note 23, §§ 600, 618.

68. The burden of proof would be on the institution since it would be attempt-ing to prove a breach. Generally, the burden is on the aggrieved party, not the allegedbreaching party. 5A CoRBiN, supra note 48, §§ 1228, 1230; 10 WILLISTON, sapra note23, § 1288. See also Developments, supra note 1, at 1146.

69. Protection of the public's sensibilities has become a major factor in certaintypes of general contract law decisions. In consumer sales, for example, the doctrinesof "unconscionability" and "public policy" have been used to void particularly hardbargains. These court forays into traditional contract law have been the strongestattacks to date on freedom of contract. See generally Williams v. Walker-ThomasFurniture Company, 350 F.2d 445 (D.C. Cir. 1965) ; -enningsen v. Bloomfield Motors,Inc., 32 N.J. 358, 161 A.2d 69 (1960) ; Frostifresh Corp. v. Reynoso, 52 Misc. 2d 26,274 N.Y.S.2d 757 (Nassau County Dist. Ct. 1966), rev'd in part, 54 Misc. 2d 119, 281N.Y.S.2d 964 (App. T. 1967).

In considering the student-private university contract, proponents of this approachargue that it is the best method for the courts to use in striking down agreementswhich ignore student rights. They argue that as a matter of rationality and justice,the courts should remove what they view as the arbitrary distinction between thepublic and private institution. Opponents view such methods as judicial interfer-ence with essentially legislative matters. They argue that such decisions are not up tothe courts to impose on the public, which has other less drastic means of accomplish-ing the same ends. See O'Neill, Private Universities and Public Law, 19 BUirFALo L.REv. 155 (1969) [hereinafter cited as O'Neill].

There appears to be little movement toward application of this essentially commercialanalysis to student-university disputes. In the recent case of Awser 1,. Cornell University,the court spoke in language directly opposed to the consumer sales doctrine of "un-conscionability":

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make these conditions both specific and obvious so that both parties, aswell as others outside the relationship, are aware of what is being done.

CONCLUSION

Application of these general contract principles should not bind stu-dents to any terms unless the catalogue provisions are presented in such away that the student can reasonably be expected to read them and under-stand them to be part of a binding contract with the university.70 If theuniversity desires to enforce any rule or waiver clause against 'the student,it should be required to bring these provisions to the attention of the stu-dent before he enrolls.7 Contract law upholds the value of private agree-ments and diversity, what Judge Friendly has called

the very possibility of doing something different than govern-ment can do, of creating an institution free to make choicesgovernment cannot--even seemingly arbitrary ones-withouthaving to provide a justification that will be examined in a courtof law."2

At the same time, the application of contract law can protect the studentby making sure that this "something different" is well-known to him andsomething he intended to do.

JONATHAN FLAGG BUCHTER

There is nothing inherently illegal in the setting by a private, or even public,institution of higher learning of conditions upon which it will accept a candidatefor a degree. Even if the stipulation made as a condition is regarded as un-reasonable or oppressive, the contract made by the parties must govern in theabsence of fraud or mistake.

71 Misc. 2d 1084, - , 337 N.Y.S.2d 878, 883 (Sup. Ct. 1972) (emphasis added).Compare UNIFORm ComERciAI. CODE § 2-302, Comment 1, which states that "[tiheprinciple is one of the prevention of oppression and unfair surprise." See also 3. CALA-MARI & J. PERILLO, THE LAW OF CoNTRAcTs § 56 (1970).

70. See, e.g., Miami Military Institute v. Leff, 129 Misc. 481, 220 N.Y.S. 799(City Ct. of Buffalo 1926).

71. For a commercial approach to this type of problem, see UNIFORM COMMERcIALCODE §1-201 (10) (1972 version).

72. H. FRIENDLY, THE DARTMOUTH COLLEGE CASE AND THE PUBLIc-PRIVATEPENUMBRA 30 (1969). See also O'Neill, supra note 69.

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